Australia shatters its party on the Convention on the Rights of the Child.

Submitted by Anonymous (not verified) on Sun, 27/11/2011 - 12:58pm

by Gerry Georgatos It is indeed now common knowledge that Australian adult prisons are incarcerating children as young as 13. The human rights struggle to free these children from our adult prisons has been an arduous one, with the major obstacle the Australian government and the horrific prejudices and stereotypes they have shoved down throats so as to perceptually modify views. Many have now been freed, some brutally traumatised, one sexually abused, all of them losing some of the form and content of their youth to an unwarranted prison experience.Related: Christmas at home for Bali boy however Christmas for many Indonesian children will be in Australian adult prisons -- Campaign Facebook page

The struggle for their freedom and for the changing of laws and ways on the Australian landscape has now garnered the support of a swathe of lawyers - who advocate the rights of these children, of the Australian Human Rights Commission, of the Australian Medical Association, of the Australian Lawyers Alliance, of UNICEF and of Greens Senators.

Prime Minister Julia Gillard and Foreign Minister Kevin Rudd were concerned about the rights of a 14-year-old Australian child who was arrested by entrapment for possession of marijuana in Bali. However, neither demonstrated the moral leadership required to represent the rights of 100 Indonesian children who for far too long languished, either as sentenced or on remand, in Australian adult prisons. The child held before the Balinese criminal justice system is not in an Indonesian adult prison and was in custody within the appropriate jurisdiction and has now been convicted to a two month sentence as a juvenile.

This Australian child will be spending Christmas with his family in Australia while scores of impoverished Indonesian children will languish in the cold dank cells and concrete confines of Australian adult prisons on that very same day.

On July 20 I spoke to Prime Minister Julia Gillard about the thereabouts 100 Indonesian children languishing in Australian adult prisons. They range in age from 13 to 17 years. It has been a painstaking journey to have some of them released – via court proceedings and by behind the scenes efforts. I contacted the Office of Foreign Minister Kevin Rudd and he promised he would assist. Like Ms Gillard, Mr Rudd delivered less than nothing.

Early last year, during an official visit, invited by a prison chaplain to HAKEA prison I unexpectedly met 30 Indonesian fisher-people who had been sentenced for fishing in excised waters. I was stunned by how young some of them appeared and hence started to ask questions. In January, I visited the Perth Airport Immigration Detention Centre, alongside refugee advocate Victoria Martin-Iverson. We met an Indonesian youth who we both spoke to, and who told us he had been a cook on a boat assisting in the safe passage of Asylum Seekers to our shores. While visiting HAKEA prison in February I was stunned to learn that this youth had been arrested and charged as a perceived people smuggler and remanded to HAKEA. This couldn’t be right - HAKEA is an adult prison. I organised to meet with him, and I did.

On the morning of the visit, for the first time in seven years of visiting prison folk I, and a companion, Nikola Leka, were pulled up by security on the instructions of the Justice Intelligence Unit and interrogated as to why I wanted to visit this youth. We did manage to see him for an hour and hence he confirmed to us that he was born in 1995 – and this is in line with the Indonesian National Police clearance that was later secured on his behalf - however he continues to languish in a West Australian regional prison.

I contacted every relevant authority in Australia and the Indonesian Embassy in Canberra and the Consulate in Perth. Every Australian authority shut up shop and passed the buck. It took much effort to get the news media involved because they wanted lawyers representing the cooks and deckhands to speak up - at that time the Australian landscape did not support this. The producers of one major news program said, “Gerry, we can’t do a story on these kids, they’re people smugglers and Australians see people smugglers as evil – it’ll affect our ratings.” Most lawyers representing these youths, funded by Legal Aid, were under representing them and hence railroading them to prison sentences in tune with the political landscape manifest by the immoral leadership of Australian government(s) selling the ‘people smugglers business model’.

The ability to discover the truth is outstripped by the ability to manifest deceit.

I have sat through a number of court proceedings and have seen first-hand the under representation - It is beyond disgraceful - it is criminal. I have listened to numerous stories from those languishing in our prisons about having no contact with their appointed lawyers and I have heard from some they had been advised to plead guilty. Working hard to get lawyers to better argue on behalf of their clients was foremost. There are a number of worthy solicitors and barristers who have done the job, and especially in recent times – the political landscape has been changing and more and more lawyers are better representing perceived people smugglers and the age-disputes. Terry Fisher, representing at this time 22 perceived people smugglers, leads the way, and David Svoboda, Mark Plunkett, Edwina Lloyd and several others have ensured the liberty of the children they represented. What these lawyers have done, and in travelling to Indonesia to secure court admissible evidence to displace the presumption of evidence of age from the discredited wrist bone ‘age’ scan, has exposed the failings of our intertwined criminal justice and political systems.

Gerry Georgatos, Edwina Lloyd, Eko Waluyo

The news media was important – and it took a couple of months to win them over, and their chiefs of staff – however The West Australian reporter Jane Hammond finally got a significant April 6 article in The West Australian about the predicament of the child I had met in HAKEA prison. For the next couple of months doors shut and bureaucrats did not know how to handle the potential political fall-out fearing a scandal-in-waiting when instead they should have been more concerned about ensuring that children were not in adult prisons - you'd think they'd err on the side of caution. Not one politician I went to was prepared to demonstrate the political leadership required – this includes The Australian Greens, and I am not alone here - it is a view publicly shared by barristers such as Mark Plunkett. The next important news media exposure came when the former chief-of-staff of The AGE newspaper Lindsay Murdoch took up the clarion call, and in July wrote one article after another, syndicated across the country. Then the West Australian’s senior reporter Steve Pennells visited Indonesia to find the mother of one of the children in our adult prisons, and this finished on the front page. Since then one reporter after another has a run a story on the plight of these children and of the discredited wrist bone scan which the Australian Federal Police (AFP) had been using for age assessment, which in the United Kingdom, in terms of assessing age, is unlawful – the test is not failsafe in determining age, and is predominately about measuring skeletal fissures. Paediatricians, and major medical bodies, and the President of the Australian Medical Association, Steve Hambleton, have slammed the test.

On July 20 I organised to be at an event so as to meet Prime Minister Julia Gillard – and I did. I spoke to her about the fact that there are Indonesian children in adult prisons, 70 having been confirmed at the time by the AFP as ‘age-disputes’. I asked her to expedite their release into an appropriate jurisdiction and preferably into the care of the Indonesian consulate. I asked her to implement appropriate age-determination protocols that did not misuse a non-failsafe discredited wrist bone scan to determine age. She froze, as if it appeared there was another scandal-in-waiting. Subsequently, Labor Party insiders have told me that the Prime Minister does not want her government to admit any prior knowledge or complicity that can be used against them, and instead has left the plight of these children to legal efforts – however not all of them have legal representation and many of them are sentenced. Federal Minister for Justice, Brendan O'Connor said there will be no review of any age-dispute of those already sentenced and it is up to them to secure legal representation to prove their age through the Australian justice system. In effect to protect the Australian Labor Party Mr O'Connor is indeed prepared to accept children in Australian adult prisons - shattering Australia's party to the Convention on the Rights of the Child. At this time there is a submission to the United Nations and to UNICEF portraying Australia's dereliction of its party to the Convention on the Rights of the Child.

Let me remind that the children who were cooks and deckhands on the boats of Asylum Seekers to our shores are not the only children in our adult prisons. There are those who most have forgotten – the poor fisher-people sentenced for fishing in excised waters. Unfortunately, the terms of reference of the Australian Human Rights Commission (AHRC) national review on the Indonesian children do not include these other Indonesian children – more on this a little further on.

In late July the government promised it would do much more - however it came back with nothing more – except that it added a dental scan to compound the problems from the wrist bone scan – neither is failsafe in terms of assessing age. Why not work with the relevant authorities in Indonesia or with the Consulates? Those children released thus far are as a result of exhausting behind the scenes campaigning, with charges withdrawn by the Commonwealth Department of Public Prosecutors. 34 have had charges withdrawn - 8 released by pressure through the Courts. However, far too many children continued to languish – so in August I organised with Sydney Indonesian human rights advocate, Eko Waluyo and Sydney lawyer, Edwina Lloyd for the coordination of a Public Forum on the plight of the Indonesian children. This was attended by 70 people and including the Human Rights Unit of the AHRC. The AHRC got involved and began to aggregate information and in time presented a number of cases to the Attorney-General, Robert McClelland to review – at least 18 cases.

However, as the news media dropped off the plight of these children and there appeared a vacuum of inhumanity in that government had stopped the wheels of justice, in that they were not prepared to amend age determination protocols nor initiate any review, nor any Senator was prepared to ask questions in the Australian Senate, Eko Waluyo, Edwina Lloyd and myself coordinated three public forums during October in Sydney on the ongoing plight of these children, and of Australia's flagrant abuse of children. The forums were held at the University of New South Wales Law School, the University of Sydney and the University of Technology Sydney. Due to these forums a swathe of news media highlighted the plight of these children, and in particular the ABC provided the through-care journalism the children needed. The AHRC has now called for the national review and inquiry and this is pivotal in unfolding justice and remedy.

(From the AHRC: Inquiry into the treatment of individuals suspected of people smuggling offences who say that they are children.

We would like to inform you that the President of the Australian Human Rights Commission, Catherine Branson QC, is conducting an inquiry into the treatment of individuals suspected of people smuggling offences who say that they are children. The majority of these individuals are Indonesian nationals who have worked as crew on boats bringing asylum seekers to Australia, and who have subsequently been investigated for people smuggling offences. As you are aware, the Commission has serious concerns that errors in age determination procedures may have resulted in some children spending long periods of time detained in adult correctional facilities. The inquiry will consider all cases where age has been in dispute since September 2008. The terms of reference for the Inquiry can be found at the Inquiry website at www.humanrights.gov.au/ageassessment/. A discussion paper outlining the major issues of concern to the Commission will soon be published on this website.

Public submissions to this inquiry are welcome. The Commission is also able to receive submissions in confidence. Submissions addressing the terms of reference are due on: Friday 3 February 2012. Submissions and other enquiries may be sent to the Commission at the following address: ageassessment@humanrights.gov.au.)

On October 15 I met with Australian Greens Senators Sarah Hansen-Young and Lee Rhiannon and hence the next most important step took place - I provided them with questions for the Senate Estimates and the Senate, and Senator Lee Rhiannon in the Senate Estimates asked the first of a set of questions of the ASIO Chief about Indonesian children in our prisons. Senator Hansen-Young has continued the questions and this has dropped an onus of accountability on various agencies - AFP, DIAC, the Office of the Prime Minister and the Commonwealth Department of Public Prosecutors.

Unless, we amend the age determination protocols we risk much of the same. Unless we amend the various 'people smuggling legislation' we risk incarcerating peoples who are not organisers and who in terms of international laws and conventions have committed no crime.

The mantra of “breaking the people smugglers’ business model” has caused much damage and perceptually modified public views. Is “people smuggling” a reality or is it a myth, and is the assisting in the passage of an asylum seeker immoral and criminal? I was stunned when a GetUP! campaign against the Malaysian option quoted, “it’s understandable that the Minister cannot offer a blanket exemption to any class of asylum seekers, for fear that people smugglers will exploit it to their advantage.” There are many asylum seekers who cannot find safe passage from persecution and oppression without the assistance of others. I do not question that there may be some who have profiteered in assisting asylum seekers, however is this a crime? Migration agents get paid for their services. Who doesn’t? Let us remind ourselves that much of what is paid to so-called people smugglers is also spent on ensuring their safe passage.

If Prime Minister Gillard and Immigration Minister Chris Bowen want to break what they perceive as the people smugglers’ business model they should listen to the Director of Refugee and Asylum Law at the University of Michigan, James Hathaway, “Canada and other developed countries created the market on which smugglers depend by erecting migration walls around their territories. The more difficult it is to get across a border to safety on one’s own, the more sensible it is to hire a smuggler to navigate the barriers to entry. Smugglers are thus the critical bridge to get at-risk people to safety. Which one of us, if confronted with a desperate need to flee but facing seemingly impossible barriers, would not seek out a smuggler to assist us?”

Perceived people smugglers are actually people who save lives and if we could remove ourselves from the racism and xenophobia we would appreciate them and their brave daring as we do Oskar Schindler and Nancy Wake. Humanity has a history of heroes who have smuggled people to safety and to destinations throughout the world where human advancement can prosper. Oskar Schindler took monies to pay monies to help thousands of individuals to freedom. Recent tributes revered the life of Australian Nancy Wake, a “people smuggler” who during German occupied Europe saved many lives.

Many people smugglers were asylum seekers and refugees and they understand the predicament of their peoples. Iraqi Ali Jenabi’s brother was killed by Saddam Hussein’s forces. He arrived in Indonesia penniless and to earn passage for his family to Australia, which included his mother, sisters, brothers and an uncle, he worked for perceived people smugglers. His family finally arrived in three separate boats. Ali Jenabi’s humanity continued and he has since helped many others seek passage, including those with no money. He is a hero to the Iraqi communities of Australia, but a perceived people smuggler to Prime Minister Gillard. He could face ten years jail.

Australia’s misrepresentation of those who assist asylum seekers in their safe passage and their labelling as people smugglers has now caught up young children, who were no more than cooks and deckhands on the boats lawfully seeking asylum to our shores. And again, let us not forget the fisher-people convicted for the miniscule crime for fishing in excised waters to feed their families. Some of them are children.

Lawyer, David Manne set a precedent by challenging the Australian government in the High Court over the lawfulness of the Malaysia option. At this time in the Victorian courts, and it may finish up in the High Court, lawyers are arguing that asylum seekers have a legal right to come to Australia and that perceived people smugglers have a legal right to assist them, and in fact they have never done anything unlawful. Indeed, paragraphs 232 and 233 of the Migration Act support this argument. A few years ago 27 legal experts explained to a Senate Estimates Inquiry that indeed there is nothing unlawful in assisting people with safe passage to foreign shores. The incarceration of people as “people smugglers” is unlawful, and the incarceration of Indonesian youth and children as cooks and deckhands is a human rights abuse. The incarceration of children in Australian adult prisons is beyond comprehensible.

If the Victorian courts uphold the arguments that there is no such thing as people smuggling per se in regards to the “business model” then this will have a wide reaching implication and may expedite the freedom of many. Australia would be best served by working with those humanitarians who risk their lives trying to help others to our shores, and by pulling down the migration walls and raising our humanitarian quota for refugees to, for instance, 50,000 and set an example world-wide.

There remain an affirmed 32 age disputes, 34 have been released - more major organisations are calling for their release and pushing for amendments to the existing laws, and some are calling for compensation and aid to the impoverished villages the children and youth came from - this would be neighbourly and in the common good. I believe there are still up to 100 children languishing, many who fearfully may have withdrawn their age dispute – one called me on October 28 to say he is 16 years old however does not want any more ‘authority’ in his life – and then there are others who never raised their age as an issue or who settled on an inaccurate date of birth either because of language barriers and a fear of authority and for other reasons few of us understand – and then there are those children who languish for far too long in Immigration Detention before being allowed to return home. Sadly, several young people on remand in our adult prisons said to me, “I am scared in prison but prison is better than Christmas Island (Detention Centre) and Darwin (NIDC) where we are treated and caged like animals, because here in prison we are treated better by the guards and there is more to do, like courses and learning, but here we have to be careful to stay away from some of the bad criminals.”

Comments

Today Julian Assange described Julia Gillard as a cowardly prime minister, boy is he right. This cowardly prime minister who would do anything to be in politics, anything to be prime minister, anything to befriend Obama and seen to be validated by him, this cowardly prime minister to stay in power and hide an abuse of children on our soil will keep these children in jail. What a disgrace!

How dare we imprison these children? There are juvenile places to put them if that was need. Not in our name as Australians should children be jailed in our country. Yes Richard Miss Gillard is a cowardly prime minister, a cowardly person who will walk over the rights of children.

Shame on the Australian government and all those who remain side by side in silence. Release the children now.

This is the most appalling shitty disgrace I have read as Australian in all my years. Thank you Gerry and thank you Edwina and than you Eko.
I am circulating this report by Gerry to everyone on my Facebook, everyone should post this link on their Facebook,

Gerry has made it perfectly clear what it took to get people to act on this horrible shame, this filthy abuse of children. It took him and others to blow the whistle on all this and build a small social movement, a wave of support. So get this out there on Youtube, you guys must have the tech to put Gerry's article on Youtube somehow some of the interviews radio and tv and send this viral around the world with help from all of so these children are freed and as Gerry says the amendments to laws made.

Australia putting kids in jail! How is this happening? The government knows? And they have let it happen? Is this Australia or one of the tinpot countries it puts down daily somewhere else? This is shocking.

The Gillard government is obscene, Abbott's party is obscene, the meek Greens are obscene, it's all obscene. Where there is a will there is a way the politicians showed that they didn't have the will to find the way.

I write to invite you or your organisation to make a submission to a parliamentary inquiry.

On 25 November 2010, the Senate referred the Crimes Amendment (Fairness for Minors) Bill 2011 to the Legal and Constitutional Affairs Legislation Committee for inquiry and report by 22 March 2012.

This private senator's bill, introduced by Senator Hanson-Young, seeks to amend the Crimes Act 1914 by defining timeframes and setting up evidentiary procedures for the age determination and prosecution of non-citizens who are suspected or accused of people smuggling offences under the Migration Act 1958, and who may have been a child (under 18) at the time of allegedly committing the offences.

The committee has invited written submissions to its inquiry by 31 January 2012 and would be grateful for a contribution from you or your organisation.

The bill, explanatory memorandum and second reading speech are on the committee's website at www.aph.gov.au/senate_legal. Hard copies are also available from the secretariat.

The committee encourages the lodgement of submissions in electronic form, but stresses that all submissions must include the author's full name, phone number and postal address on a separate covering letter. Please note that a submission becomes a committee document, and must not be disclosed to any other person until it has been released ('published') by the committee. Unless you have requested that your submission remain confidential, it will be published on the committee's website after the committee has examined and accepted it, and authorised its publication. Once a committee has authorised the release of a submission, subsequent publication of it is protected by parliamentary privilege.

Mr Assange attacked the Prime Minister when he was given a Walkley gong by perfectly describing her as "a cowardly prime minister" who does USA bidding and what he described was a cowardly Australian government. It is a cowardly government that leaves children in prison. Gerry I watched one of your interviews and you said it true, that it is racism and discrimination when our government leaves these Indonesian children in jails but cries foul when one of our children is in a foreign jail.

This Senate business is often full of hot air but it is good it is happening because even though they may not cane anyone for jailing the children what may happen is that they are freed so it all goes away. This is how it sort of works in Australia.

DIAC UNLAWFULLY STEALS THE EARNINGS OF IMPOVERISHED CHILDREN
IN ADULT PRISONS AFTER THEIR RELEASE AND WRONGFUL INCARCERATION.

The Australian Federal Police, on behalf of the Australian Commonwealth Government, as a result of an inappropriate wrist bone scan misused to determine 'age', incarcerated scores of impoverished Indonesian children in Australian adult prisonS, as young as 13.

Many remain imprisoned - The AFP has affirmed it recognises at least 32 remaining "age-disputes". One child called me to tell me he no longer wants to argue his age even though he insists he is 16 because of "...all the authorities"...

For those children who have been and are being released, who have had charges dropped and who have been recognised as children, the Department of Immigration and Citizenship is committing more unpardonable sins. They are stealing the earnings these children have worked for in laundries, kitchens and in cleaning duties and gardening while incarcerated in adult prisons - the few or several hundreds of dollars they earned by working hundreds of hours at appalling low rates of pay are being misused to pay for their 'deportation'.

These children in effect were kept in Australia against their will, in Immigration detention and in adult prisons. In effect they were kidnapped by Australian authorities and unlawfully imprisoned and in inappropriate jurisdictions.

There is no lawful prescription for DIAC to be stealing their monies, and it is an insult to be claiming the objective is to reduce a debt. The Immigration Act does not allow them to willy nilly appropriate the assets or monies of a person to reduce or pay for any perceived debt at their discretion. These children have not committed any crime, it is the Australian government and DIAC who have committed injustices against the children by incarcerating them and stealing their childhoods.

DIAC is claiming that these impoverished Indonesian children are consenting to the forfeiture of their monies - DIAC has to say this because it is not lawful to just take their earnings. These children are not consenting to this, they are actually broken hearted that they cannot return to the poorest of villages and towns, to the poorest of families with their earnings which of course would provide some majorly difference.

Australia misspends billions on mandatory detention and now steals hundreds of dollars from children who had been wrongly imprisoned - this is appalling.

If DIAC believes there is a debt, then it has to be prove the basis of that debt in Court, and only a Court can instruct for any repayment. These children have committed no crime, there is no conviction, and the crime has been that the DIAC, the AFP and the Commonwealth wrongfully incarcerated these children. DIAC is getting away with this because they have not been challenged in Court, and it is appalling it has to always come to this.

Early this year in Western Australia prisons were instructed to not allow any Indonesian charged with people smuggling to transfer their earnings to their families in Indonesia. However this is not the case in for instance New South Wales.

Furthermore, Sri Lankans incarcerated in Western Australian prisons on people smuggling charges were not included in this edict - I know for a fact that they were able to transfer earnings to their impoverished families in Sri Lanka.

What DIAC is doing, stealing the earnings of these impoverished children, who languished on average for a year in an adult prison, is despicable, and what is even more despicable is their outrageous claim that the children have 'consented' to this - they have not. They are distraught. It now appears they wish to extend this despicable act to all Indonesians incarcerated, children and young adults - and in effect labour provided by people while in prison will have been unpaid and therefore slave labour. This behaviour by DIAC and by the Australian government is demonstrative of discrimination and racism.

FEDERAL prosecutors will no longer oppose bail for accused Indonesian people-smugglers who claim to be underage, a move that has the potential to diffuse significant tension between Canberra and Jakarta.

In response to growing concerns about minors in jail, the Commonwealth Director of Public Prosecutions -- responsible for prosecuting the soaring number of Indonesian fishermen in custody -- has instituted a policy of not opposing bail where a defendant's age is in dispute.

The policy does not mean that the Indonesians, who are facing a mandatory jail term of five years, with a non-parole period of three, are released into the community, as they are unlawful entrants with no visa.

They are returned to immigration detention, avoiding situations where underage boys have been mistakenly incarcerated in maximum-security prisons.

It is understood time spent in detention is then deducted from their sentence, despite immigration detention being administrative, rather than custodial, incarceration.

Virtually all asylum boats arriving in Australia bring with them a handful of crewmen, invariably poor Indonesian fishermen with little or no understanding of the tough penalties awaiting.

According to officials at the Indonesian embassy, there are about 500 Indonesians in immigration detention or jail.

About 45 of them claim to be underage. Those who are found to be minors are not prosecuted.

But the main tool used to test that claim -- wrist X-rays -- has been criticised by medical experts as unreliable and there have been numerous cases of teenagers being freed from jails after their ages were definitively established.

As a further safeguard, Commonwealth Director of Public Prosecutions Chris Craigie will not authorise a prosecution against a people-smuggling suspect unless he is personally satisfied that the accused is at least 19 years old.

Nevertheless, the issue has prompted an inquiry by the Human Rights Commission.

Commission president Catherine Branson QC said she was concerned that the rights of children were being respected.

She said the commission would examine whether wrist X-rays -- which, under the Crimes Act, the Australian Federal Police are required to use -- should be given any legal weight at all, given the question mark over their accuracy.

"One thing we do know is that it's now accepted that significant mistakes have been made," Ms Branson said.

"There are young men now accepted to have been children, in some cases as young as 14, at the time of the alleged offence."

Ms Branson said she was aware of the new prosecution policy.

However, she questioned whether the change was widely known among the lawyers charged with defending young Indonesians, meaning they might not automatically apply for bail.

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each occasion they would rotate back to Australia for a few weeks or simply to another post in the region and

work there is the sort of fine detail we have not gone through yet.

Senator HUMPHRIES—Sure. Language training?

Mr Metcalfe—That would certainly be something that we would seek to do as well.

CHAIR—I am not pressuring you for time. Senator Hanson-Young has 15 minutes in this area.

Senator HUMPHRIES—If it was anybody else, I would say no, but I will let her go.

CHAIR—I am just wondering whether she should do her 15 and then we will come back to you. Or, if you

have got only another five minutes, we could wrap you up.

Senator HUMPHRIES—No. I have a bit more than that, so I would be very happy to defer to Senator

Hanson-Young.

CHAIR—Then she could go home, because she has a young child here. So that would be most

accommodating.

Senator HUMPHRIES—I come from a family oriented party, so I understand that argument.

Senator HANSON-YOUNG—Thank you. The reason it is so short is that I put the IOM questions to you

earlier, so I snuck that one in. The final question I have in outcome 3 is in relation to the specific budget

measure in Budget Paper No. 2 that refers to border security and the engagement with Indonesia. Do you want

to find that? Do you want me to keep talking, or do you want me to let you find that first?

Senator Chris Evans—I think you have got the right people at the table, Senator.

Senator HANSON-YOUNG—Great. So this engagement measure within Indonesia describes $31.2

million going from the aid budget to managing irregular migration flows. I want to firstly clarify what that

means in terms of going from the aid budget. Is that from Foreign Affairs? Is that from something else within

Immigration? What will that actually be used for?

Mr Metcalfe—In broad terms, Senator, that indicates that the activity is ODA eligible. It qualifies as overseas development assistance and is therefore drawn down from the budget administered by AusAID and

the department of foreign affairs.

Senator HANSON-YOUNG—Would you be able to specify the items listed that will be funded through

that $31.2 million and whether any of that money will actually go towards combating people smuggling, visa

determination processes and the processing of involuntary returns?

Mr Hughes—The combination of things provided for includes assisting UNHCR with the early refugee

status determination of irregular migrants in Indonesia, supporting Indonesia with accommodation and

detention arrangements for people—

Senator HANSON-YOUNG—That is detention facilities?

Mr Hughes—Accommodation and detention arrangements for people intercepted by the Indonesian police

and immigration. It is enhancing Indonesia’s capacity to undertake returns of people found not to require

international protection and assisting the Indonesian authorities in improving their immigration system.

Senator HANSON-YOUNG—Does any of that money go to the IOM?

Mr Hughes—At the moment, the details have to be worked through with the Indonesian authorities

because the intention is to support them in their local capability. So I cannot say at the moment how much of

that might be spent through IOM. But it is possible.

Senator HANSON-YOUNG—I understand the idea of accommodation and detention facilities, but in

terms of the policing side of it, does that lead specifically to people smuggling, or is that about policing those

people who are held in detention?

Mr Metcalfe—It is about irregular migrants or people who are potentially being people smuggled to

Australia. It is simply a continuation and an expansion of what has been happening for many years, where we

work with Indonesian immigration authorities to assist them with people who may be unlawfully in Indonesia

who are seeking asylum. We work with the UNHCR and we work with IOM to provide capacity building so

that the Indonesian immigration authorities have a greater ability to manage the situation that they face to

ensure that people who are in fact seeking protection are able to access processes and so on.

Senator HANSON-YOUNG—Sure. Correct me if I am wrong. It is for individuals seeking asylum and

helping to establish those processes?

LEGAL AND CONSTITUTIONAL AFFAIRS

L&C 102

Senate

Wednesday, 26 May 2010

Mr Metcalfe—It is for us to support Indonesia as it participates in regional arrangements and cooperation.

So it is very much about supporting the Indonesian and international effort to support irregular migrants in

Indonesia, many of whom are seeking to come to Australia illegally.

Senator HANSON-YOUNG—Will any of that money go towards Indonesia dealing specifically with

people smugglers?

Mr Metcalfe—People smugglers or people being smuggled?

Senator HANSON-YOUNG—People smugglers.

Mr Metcalfe—It would not be my expectation that it would be targeted at people smugglers. There may be

other elements of law enforcement cooperation through the Australian Federal Police, for example, where

there may be work in that sphere. But this is very much about the immigration processes and supporti ng their

processes to deal with the many people who are in Indonesia and come into Indonesia.

Senator HANSON-YOUNG—So the other various programs that are listed under the budget specifically

about targeting people smuggling are going to be related to the smugglers as opposed to the individuals and

this is about those individuals who are—

Mr Metcalfe—When we talk about people smuggling, there are many things within that. It is ultimately

designed to ensure that individuals are supported without seeking to embark on the very risky voyage to

Australia. From our perspective, that largely relates to assistance to the Indonesian immigration agency, the

UNHCR and the IOM. Other elements of Australian government support certainly go to law enforcement

cooperation, which will be more directly targeting the criminal elements associated with people smuggling.

Senator Chris Evans—Our focus is very much on capacity building in immigration in Indonesia. If you are talking about law enforcement initiatives, they are much in the AFP space of initiatives and work they do

with the counterpart police operations et cetera. Our relationship is with Imigrasi and it is about their

capacities and professionalism, be it on border management systems through to policy development and

detention and returns processing et cetera.

Senator HANSON-YOUNG—So you are confident that this $31.2 million that has been taken from the aid

budget specifically for this engagement with Indonesia will not be used to combat the criminality aspect of

people smuggling? It is not about people smugglers; this is going to be about the—

Mr Metcalfe—I see the point you are making, though. This is very much about the immigration capacity as

opposed to the law enforcement capacity, if you want to draw that distinction.

Senator HANSON-YOUNG—Thank you very much. That is all I have. I think I was under 15 minutes.

Permalink Submitted by In the know. (not verified) on Wed, 07/12/2011 - 5:15am

Former attorney-general Philip Ruddock argues that asking Indonesia to detain asylum seekers destined for Australia is "the equivalent of Rudd's Pacific Solution". He is right.

The Prime Minister's personal intervention to convince Indonesian President Susilo Bambang Yudhoyono to arrest and hold 260 Sri Lankans off Krakatoa Island this week smacks of the Howard administration's program to force people seeking refuge in Australia away from our shores. Admittedly it is less direct – Rudd has conscripted the Indonesians to do our "dirty work" rather than ordering our own forces to keep the refugees away. But the effect is the same. Just as the Howard government dumped refugees in Nauru, a place where refugee law did not apply, so too has the Prime Minister decided that people exercising their international legal right to seek protection should be forcibly held in Indonesia, another country that refuses to sign the United Nations Refugee Convention. In the result, people fleeing truly dire situations in Afghanistan, Iraq and Sri Lanka – many, if not most, of whom would under Australian standards qualify for protection as refugees – have been (albeit indirectly) stripped of their rights. By us.

Rudd's plan resembles the Howard government's scheme in another way too. The Pacific Solution saw Australia buy Nauru's acquiescence by the financing of sports ovals, offering of scholarships and funding of medical bills for Naurans. Australia under the Rudd Government is once more buying its way out of protection responsibilities, this time offering Indonesia a combination of intelligence information, satellite imagery, security training and as yet unspecified "framework assistance" to seal the deal on imprisoning refugees bound for Australia. Assistance of this kind may be less obviously a pay-off than the Howard government's bribes to Nauru. But given the cause and effect relationship, there is not much doubt that the goodies now en route to Indonesia are Australia's "30 pieces of silver" paid to betray refugees guilty only of seeking asylum.

A third common feature of the Rudd Government's present actions and the earlier Pacific Solution is the persistent distortion of the law to serve blatantly political ends. Just as Philip Ruddock and John Howard wrongly argued that Australia had the right to force refugees away from its territorial waters at will despite having undertaken international protection obligations to all refugees under its jurisdiction, we now see the Prime Minister confidently asserting that he will make "no apology whatsoever in terms of the series of hardline measures that [the government is] taking in relation to people smuggling and in relation to illegal immigration".

Rudd is absolutely wrong to suggest that he is entitled to force refugee claimants into detention in Indonesia on the grounds either that they are travelling with aid of people smugglers, or because they are "illegal" immigrants.

Refugees use smugglers – and sometimes, regrettably, traffickers as well – precisely because there is no other way quickly, and with even a modicum of reliability, to get out of dangerous places and to a country in which they can seek recognition of their protected status. Australia, like most other rich countries, has erected a myriad of physical and legal barriers – carrier sanctions, visa controls, and the like – that prevents genuine refugees from coming to us legally. Even if a refugee could somehow safely reach and walk into an Australia embassy abroad, we would not issue a visa for the purpose of seeking asylum here. Travel without pre-authorisation is, for the truly desperate, usually the only real option.

It is therefore wrong to stigmatise refugees who travel directly to Australia as "illegal migrants". Precisely because the drafters of the Refugee Convention knew that states were not likely to relax generic border controls to let asylum-seekers in, the treaty mandates that all state parties exempt refugees from any penalties for illegal entry or presence. There is, in short, nothing illegal about coming directly to Australia to seek our protection. A treaty we helped to write and have agreed to be bound by says exactly the opposite.

Nor does Australia have any practical reason to feel overburdened by responsibilities towards refugees. We protect only about one-tenth of 1 per cent of the world's feel overburdened by responsibilities towards refugees. We protect only about one-tenth of 1 per cent of the world's refugees, with roughly 90 per cent of refugees stranded in the world's poorest countries. Even by developed state standards we fare poorly. Last year, for example, Canada processed the claims of nearly 35,000 refugee claimants. By what possible metric can it be suggested that the 2000 boat arrivals amount to more than we can manage? If they are genuine refugees, we should do our duty and admit them. If they are really economic migrants masquerading as refugees, or if they are persons suspected to present a risk to our safety or security, the Refugee Convention allows us to send them back to their country of origin – a perfectly sensible course of action.
But nothing in international law allows Australia or any other state party to imprison refugee claimants – directly or by paying off partner states – for the simple act of seeking asylum. For his personal role in convincing Indonesia to violate international norms, the Prime Minister does owe us all an abject apology.
James C. Hathaway is Dean and William Hearn Professor of Law at the University of Melbourne.

Australian co-operation in South-East Asia: disaster or opportunity?

PROFESSOR JAMES HATHAWAY
Dean and William Hearn Chair of Law, Law School, University Of Melbourne
Co-operation between states to protect refugees is lawful. The preamble of the Refugee Convention calls upon states to find ways to share responsibility toward refugees. It is perfectly right for Australia and other states to negotiate agreements among states that accept and live by the same obligations to refugees, so as to arrange more fairly distributed protection responsibilities.

However, in order for Australia to share responsibility:
_ The state with which Australia proposes to share responsibility has to be a party to the 1951 Convention and its Protocol. It is not possible to share responsibility with a state which has no responsibilities under the Convention and is therefore not bound by anything.
_ The ‘receiving’ state has to be accountable formally and must live up to the obligations which are being transferred to it. Refugee law is not concerned with abstract niceties but with the reality on the ground.

The problem for Australia is that it is virtually surrounded by states which have not ratified the 1951 Convention or do not have the capacity or willingness to abide by it. This poses a significant challenge for Australian governments wishing to share the responsibility for refugee protection with these states. Despite an indication from Indonesia 12 months ago that ratification was imminent, it is clear that Indonesia does not want to be vulnerable to responsibilities which emanate from the Convention. This therefore leaves only New Zealand, Korea and the Philippines, each of which has signed the Convention and has proven administrative capacity to abide by it, which Australia can consider for the sharing of responsibilities within the region.

The debate though should shift away from the notion of regional-sharing to global-sharing. As a global movement, the idea of responsibility on a global level makes more sense. Governments cannot trade off offers of resettlement for their duties of protection. Deals should not be made with international law as international law exists as the bedrock. Australia may wish to show leadership by going beyond its responsibilities under international law but it cannot trade away its protection responsibilities.

The false panacea of offshore deterrence
by James C Hathaway

Governments take often shockingly blunt action to deter refugees and other migrants found on the high seas, in their island territories and in overseas enclaves. There is a pervasive belief that when deterrence is conducted at arms-length from the homeland it is either legitimate or, at the very least, immune from legal accountability.

For example, the US maintains that it has no legal obligation to intercepted refugees, even if they manage to reach its territorial sea. Indeed, the US recently argued that a Cuban asylum seeker – traditionally a highly favoured group under its domestic law – could not assert a right to protection because the bridge where her tiny boat landed had been disconnected by storms from the American mainland.

When some 10,000 persons managed to reach the Italian island of Lampedusa this year, Italy responded by discontinuing its traditional practice of sending them to Sicily for processing of protection claims. Instead, the BBC reports that the “migrants were dispatched back handcuffed in military planes from Lampedusa direct to Libya. No questions asked.”

Spain erected dual razor-wire fences around its North African enclaves of Ceuta and Melilla to deter groups of largely sub-Saharan migrants anxious to enter the European Union. Even those who successfully scaled the barriers were often summarily sent back to Morocco, which is reported simply to have dumped them in desert border zones. The ‘success’ of this deterrent programme put renewed pressure on the Spanish Canary Islands, a favoured destination until 2002 when radar and sea patrols were instituted to deter travel from Morocco to the Canarian islands of Fuerteventura and Lanzarote, some 100 kilometres away. The most recent flows have thus been forced to take a much longer and more perilous route from northern Mauritania to Tenerife. The Spanish government has responded to the upsurge in arrivals by offering Mauritania patrol boats to stop departures and to set up refugee camps in Mauritania.

Are such practices legal?

The 1951 Refugee Convention and its 1967 Protocol do not allow states to refuse protection to refugees just because they have not yet entered the core of its territory. Simply put, the most basic duties – including the critical duty of non-refoulement, requiring states not directly or indirectly to return refugees to the risk of persecution – apply wherever a state exercises jurisdiction. Whether protection is sought on Lampedusa or in Rome, the refugee law implications are identical. It makes no difference whatever if asylum is claimed by a refugee clinging to the outermost razor-wire fence at Ceuta or at a police station in Madrid. Nor may there be any peremptory refoulement of refugees encountered by vessels patrolling a state’s territorial waters, or even of those intercepted on the high seas. Because jurisdiction is the lynchpin to responsibility, state parties to the Refugee Convention must provisionally honour the rights of persons under their authority who claim refugee status until and unless they are fairly determined not to qualify for protection.

Despite the clarity of these legal rules, two kinds of argument are made in support of deterrent measures.

The first is that insistence on rigorous respect for the rules of refugee law amounts to allowing the proverbial tail to wag the dog. Because in any given flow towards the developed world today refugees are significantly outnumbered by economic migrants – whose entry can normally be lawfully resisted – it is argued that governments must be free to respond effectively to the dominant (non-refugee) character of the arrivals.

As a matter of law, though, non-selective deterrent measures cannot be justified where genuine refugees are part of a mixed flow. There is no exception to the duty of non-refoulement for situations in which the cost or inconvenience of processing claims is great, or where only one in ten entrants is actually a refugee. Nor can states lawfully avoid refugee protection obligations by deciding simply not to assess claims made to them. As UNHCR rightly insists, a refugee does not become a refugee because of recognition, but is recognised because s/he is a refugee. In practice, this means that a person who may be a refugee must be provisionally treated as such until and unless he or she is fairly determined not to qualify for refugee status. Measures which deter refugee claimants from arriving in an asylum state are therefore no less in breach of refugee law than is the removal of a recognised refugee already present in a state’s territory.

A second and more complex argument for deterrence is sometimes made on humanitarian grounds. Particularly where refugees and others arrive by sea, often in rickety or grossly overcrowded vessels, it has been said that departures must be stopped in order to avoid risk to life or limb.

There is, however, a critical legal distinction between sensible efforts to provide information and to make it difficult for traffickers to exploit people on the one hand, and more aggressive efforts actually to stop departures on the other. Whatever the risks, every person has the legal right to make the decision about departure for him or herself. The relevant rule in such cases is not rooted in refugee law but in the requirement in the International Covenant on Civil and Political Rights that all persons be allowed to leave any country, including their own. Allegedly humanitarian steps taken to shut down escape routes – such as the formal agreement between the US and Cuba in 1994 requiring Cuba to “... take effective measures in every way it possibly can to prevent unsafe departures using mainly persuasive methods” – are unlawful and paternalistic. It is the refugee’s right – not the prerogative of any state or humanitarian agency – to decide when the risks of staying put are greater than the risks of setting sail.

Until and unless the abuse that causes refugees to flee in the first place is ended, the only real answer is to provide safe alternatives to unsafe routes of escape. While blunt deterrence of refugee or mixed flows is unlawful, states are perfectly free to conceive creative protection alternatives. Most sensibly, the focus should be on the establishment of genuine protection options within regions of origin. Where intra-regional alternatives are truly safe and accessible and deliver rights-based protection, it is likely that most refugees will feel no need to undertake perilous voyages. Indeed, where protection options that meet international legal standards are declined for economic, social or other reasons not related to protection, refugees who travel farther afield may lawfully be returned to their own region. For this reason, a re-emphasis on making real protection available closer to home should be attractive to developed states: while less ‘efficient’ than (unlawful) deterrence, it is, nonetheless, consistent with their more general migration control objectives. It is also of real value to states in regions of origin, which desperately need binding guarantees of substantial resources to cope with endemic refugee flows. Most critically, it would enhance the welfare of the overwhelming majority of refugees not able or willing to flee beyond their own region.

Discussions along these lines are, of course, already occurring. There is clear interest in exploring both the operational flexibility which refugee law affords, and the value of systems to share out both the responsibilities and burdens inherent in refugee protection. It is not at all clear, however, that present initiatives are based on finding practical ways by which to respond to involuntary migration from within a rights-based framework. Potentially lost in the discussions as they have evolved to date is the imperative to reform the mechanisms of refugee law not simply to avert perceived hardships for states but also in ways that really improve the lot of refugees themselves. If the net result of reform is only to lighten the load of governments, or to renew the capacity of international agencies to meet the priorities of states, then an extraordinary opportunity to advance the human dignity of refugees themselves will have been lost.

The challenge, then, is twofold. Most obviously, we must flatly reject the legitimacy of generalised deterrence which can block refugee flight, including even deterrent measures prompted by genuine humanitarian concern. Second, we should embrace the opportunities which reform of the mechanisms of refugee law affords both to save lives now risked in the flight to asylum and to improve the quality of protection for all refugees in the world, wherever located.

Lies all around us. An Intervention in the NT built on lies, banks lie to us, governments lie to us and now they put children in jails with paedophiles and murderers. Where is the billion dollars industry of television news, the shit load of radio jocks and the newspaper moguls with their army of reporters to tell the story? But the problem you see is that they are all mouthpieces. Even the ABC, the bullshit independents, well they are not, they are the chief mouthpiece of the government, all of them are mouthpieces and pr merchants with ties so well knit that everything is about the business of government and there are boundaries not to be stepped over. Go overseas if you want the news, you won't get it in Oz.

One minute it is deporting people the next minute it is imprisoning children, what next? Now that McClelland is gone
from the chief law office let us see what the latest hypocrite and careerist in Roxon will do as Attorney-General

If you listen to all the pollies now, the Greens and so called human rights activists they are all talking like Gerry was a year and two years ago on this issue, they are all on the band wagon now the work has been done by people like Gerry. It actually makes me sick to see how the world ticks and how our pollies beat the drum to suit themselves. Pretty shitty business but Gerry and to the few others like you mate, you are worth more than all the gold mines put together. You are a special man.